PEOPLE v. FERGUSON (2007)

Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).   Contrary to defendant's contention, County Court did not err in assessing 10 points for sexual misconduct while confined.   The case summary states that, on February 4, 2005, defendant was cited for Tier II infractions for, inter alia, “Lewd Exposure.”  7 NYCRR 270.2(B)(2)(iii) provides that an inmate shall not intentionally expose “the private parts of his or her body” in the presence of an employee except for an authorized purpose.   The court rejected the explanation of defendant that he was using the bathroom facilities while a female employee was within sight, and there is no basis in the record before us to disturb that determination.   We note that the court reduced the score on the risk assessment instrument from 145 to 110, and we conclude that the court's determination that defendant is a level three risk is supported by clear and convincing evidence (see People v. Vacanti, 26 A.D.3d 732, 733, 807 N.Y.S.2d 894, lv. denied 6 N.Y.3d 714, 816 N.Y.S.2d 750, 849 N.E.2d 973).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: